Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 255256 OF 2018
BHAGCHANDRA ...APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The appellant has approached this Court, being
th
aggrieved by the judgment and order dated 19 December
2017, passed by the Division Bench of the High Court of
Madhya Pradesh at Jabalpur in Criminal Appeal No. 1684 of
2017, thereby dismissing the appeal preferred by the
appellant challenging the judgment and order passed by the
Second Additional Sessions Judge (hereinafter referred to as
th
the “trial judge”) dated 4 April 2017, vide which the
1
appellant was convicted for the offences punishable under
Section 302 read with Section 201 and Section 506B of the
Indian Penal Code, 1860 (hereinafter referred to as the “IPC”).
The trial judge had awarded death sentence to the appellant
for the offences punishable under Section 302 of the IPC (3
counts) and 7 years’ rigorous imprisonment each for the
offences punishable under Sections 201 and 506B of the
IPC respectively. The trial judge has also made a reference
being CRRFC No. 03 of 2017 to the High Court under Section
366 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as “Cr.P.C.”) for confirmation of death penalty.
Vide impugned judgment and order, the High Court
confirmed the death penalty.
2. The prosecution story in brief, is thus:
AppellantBhagchandra is the real brother of deceased
Thakur Das and deceased Devki Prasad. Deceased Akhilesh
was the son of deceased Devki Prasad and as such, the
nephew of the appellant. PW1Kiran Patel is the wife of
deceased Devki Prasad. PW2Urmila and PW3Kamlesh are
2
the daughter and son of deceased Devki Prasad and Kiran
Patel (PW1).
3. Deceased Devki Prasad resided in village Pur along with
his brother deceased Thakur Das, his wife PW1Kiran Patel,
daughter PW2Urmila, sons PW3Kamlesh, deceased
Akhilesh, and Kisiyabai, mother of the appellant.
4. It is the prosecution case that on the fateful early
th
morning of 11 October 2015 at around 05.0005.30 am,
complainantKiran Patel (PW1) had gone to attend the call of
nature. While returning, she saw the appellant armed with
an axe getting out of her house. It is the prosecution case
that there was previous enmity between the appellant on one
hand and deceased Thakur Das and deceased Devki Prasad
on the other. She therefore suspected some foul play.
Immediately after entering the house, she saw Thakur Das
lying dead smeared with blood and his neck was detached
from the body. In the courtyard, she also found her son
Akhilesh lying dead. It is the prosecution case that deceased
Devki Prasad had gone to his field in the night so as to guard
the crops. Suspecting something might be done to him, PW
3
1 rushed towards the field which was nearby the house. She
saw the appellant assaulting her husband Devki Prasad with
an axe. She tried to stop the appellant but he threatened to
kill her. In the meanwhile, the relatives and the neighbours
had gathered at the spot.
5. Immediately after the incident, a First Information
Report (hereinafter referred to as “FIR”) came to be registered
on the basis of the oral complaint given by Kiran Patel (PW
1), in the Police Station, Maharajpur. After investigation,
chargesheet came to be filed before the concerned court
which committed the case to the Sessions Judge.
6. The trial judge framed charges against the appellant
under Sections 302 (3 counts), 201 and 506 PartII of the
IPC. The appellant denied all the charges and claimed that
he was falsely implicated by Kiran Patel (PW1) to grab the
property.
7. At the conclusion of the trial, the trial judge found the
appellant guilty of committing the offences he was charged
with and as such, awarded sentences as stated hereinabove.
The trial court also made a Reference being CRRFC No. 03 of
4
2017 to the High Court for confirmation of the capital
punishment awarded by it.
8. Being aggrieved by the judgment of conviction and
sentence passed by the trial court, the appellant preferred an
appeal being Criminal Appeal No. 1684 of 2017 before the
High Court. The High Court dismissed the appeal and
confirmed the death penalty awarded by the trial court.
Being aggrieved thereby, the present appeal.
We have heard Shri N. Hariharan, learned Senior
9.
Counsel, appearing on behalf of the appellant and Smt.
Swarupama Chaturvedi, learned Assistant Advocate General,
appearing on behalf of the respondentState.
10. Shri Hariharan would submit that the entire case
against the appellant is a fabricated one and has been
framed at the instance of Kiran Patel (PW1). The learned
Senior Counsel submitted that the evidence as placed on
record by the prosecution does not establish the guilt of the
accusedappellant beyond reasonable doubt.
5
11. The learned Senior Counsel submitted that firstly, the
time of the incident as shown by the prosecution is itself
doubtful. He submitted that the PostMortem Report of all
the three deceased persons would show that semidigested
food was found in the stomach of the deceased persons. He
therefore submitted that the death would have occurred
around 34 hours after their last meal. He submitted that
from the evidence brought on record, it would show that
deceased Devki Prasad had left for the field at around 09.00
pm. He submitted that therefore the deceased must have
taken their meal at around 09.00 pm. As such, the death
has occurred between 12.00 midnight and 01.00 am.
12. He further submitted that there are material
contradictions in the testimonies of PW1Kiran Patel, PW2
Urmila and PW3Kamlesh. He submitted that even the
conduct of PW1 is unnatural. She has stated that, while
going to answer the call of nature, she had put a latch to
close the door of the house. He submitted that normally a
person would not do such an act. He further submitted that
the evidence of PW7Rakesh Vishwakarma is totally
6
unnatural. From the evidence of PW7, it is clear that
though he has witnessed the incident, he has not informed
the same to the police, who were very much available in the
village. He has only informed PW6Kamlesh Patel s/o
Gulabchandra Patel (for the sake of convenience, hereinafter
referred to as “KamleshII”). He submitted that it is clear
that PW7 is an introduced witness.
13. Shri Hariharan further submitted that the prosecution
has withheld the most important witness i.e. Kisiyabai,
mother of deceased Thakur Das and Devki Prasad as well as
the appellant, though her statement was recorded under
Section 161 Cr.P.C. He submitted that since the prosecution
has withheld an important witness, an adverse inference
needs to be drawn against the prosecution. The learned
Senior Counsel, in this respect, relies on the judgment of this
Court in the case of
Pratap Singh and Another v. State of
1
Madhya Pradesh .
The learned Senior Counsel submitted that the so
14.
called recovery of axe on the memorandum of appellant
1 (2005) 13 SCC 624
7
under Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as the “Evidence Act”) is also of no
relevance. He submitted that firstly, the Serology Report
does not support the prosecution case. He submitted that
the recovery on memorandum would be relevant only if the
prosecution is in a position to establish that the article
recovered was used in the crime. He submitted that apart
from the Serology Report not supporting the prosecution
case, the said axe has not been put to any of the witnesses to
establish that it was the same weapon which was used in the
crime.
15. Shri Hariharan would submit that the trial court as well
as the High Court has not considered the evidence in its
correct perspective. He submitted that the evidence has been
considered in a totally erroneous manner. He submitted that
though this Court is exercising the jurisdiction under Article
136 of the Constitution of India, since the matter pertains to
death penalty, it is necessary that this Court should
reappreciate the entire evidence. He relies on the judgments
of this Court in the cases of Mohammed Ajmal Mohammad
8
2
Amir Kasab alias Abu Mujahid v. State of Maharashtra ,
3
and
Dayanidhi Bisoi v. State of Orissa Mohd. Arif alias
Ashfaq v. Registrar, Supreme Court of India and
4
.
Others
16. Shri Hariharan, in the alternative, submitted that in no
circumstances, the death penalty was warranted in the facts
of the present case. He submitted that firstly, the trial court
has imposed the death penalty on the same day on which the
conviction was recorded. He submitted that a sufficient
period of time between the order of conviction and the
sentence ought to have been given to the appellant so that
the appellant would have availed of his right to point out the
aggravating and mitigating circumstances. He further
submitted that the courts below have also failed to take into
consideration that the accused was not a hardened criminal.
The accused did not have any criminal antecedents and it
was his first crime. He further submitted that the trial court
as well as the High Court has not taken into consideration
2 (2012) 9 SCC 1
3 (2003) 9 SCC 310
4 (2014) 9 SCC 737
9
the possibility of the appellant being reformed. It is therefore
submitted that the death penalty is not warranted at all in
the facts and circumstances of the present case.
Smt. Chaturvedi, on the contrary, submitted that both
17.
the courts below have rightly convicted the appellant and
also awarded death penalty. She submitted that minor
inconsistencies in the evidence of the witnesses should not
be given much importance. She further submitted that when
ocular evidence has been found by the court to be cogent,
trustworthy and reliable, then some inconsistencies in the
medical evidence would not be relevant. She relies on the
judgment of this Court in the case of Krishnan and
5
to
Another v. State represented by Inspector of Police
assert the said contention. She further submitted that merely
because the Serology Report is not conclusive, it cannot be a
ground to disbelieve the prosecution case. For the said
proposition, she relies on the judgment of this Court in the
6
case of .
R. Shaji v. State of Kerala
5 (2003) 7 SCC 56
6 (2013) 14 SCC 266
10
18. Smt. Chaturvedi, in order to meet the challenge about
the evidence of PW7Rakesh, submitted that the reaction of
a witness to a situation may differ from person to person.
She submitted that merely because PW7Rakesh has
informed PW6Kamlesh first, which was prior to informing
the police, it does not put a dent on his testimony. For this,
she relies on the judgment of this Court in the case of
7
.
Rammi alias Rameshwar v. State of Madhya Pradesh
19. She further submitted that taking into consideration
the brutality of murder, wherein three blood relatives have
been done away with for no fault of theirs, warrants no lesser
penalty than the death penalty. She submitted that the
necks of all the three persons were segregated due to the
brutal attack and as such, the trial court has rightly awarded
death penalty and the High Court has rightly confirmed the
same. She relies on the judgment of this Court in the case of
8
.
Ravi s/o Ashok Ghumare v. State of Maharashtra
20. Shri Hariharan, in rejoinder, submitted that in view of
the law laid down by this Court, relevant material is required
7 (1999) 8 SCC 649
8 (2019) 9 SCC 622
11
to be placed before the court while considering as to whether
the death penalty should be awarded or not. He submitted
that accordingly, an affidavit of the close relatives of the
appellant has been placed on record. He further submitted
that the certificate from the prison authority is also placed on
record which would show that the conduct of the appellant is
satisfactory, not warranting death penalty.
21. With the assistance of the learned counsel for the
parties, we have examined the materials placed on record.
PW1Kiran Patel is the wife of deceased Devki Prasad.
22.
She has stated in her evidence that on the date of the
incident, at around 05.00 am, she had gone out to answer
the call of nature. At that time, her brotherinlaw Thakur
Das, sons Akhilesh and Kamlesh, daughter Urmila and
motherinlaw Kisiyabai were sleeping at home. When she
returned after around 10 minutes, she saw appellant armed
with an axe coming out of her house. She suspected some
foul play. When she entered the house, she saw her brother
inlaw Thakur Das lying dead in outer room. His neck was
cut. When she came in the courtyard, she saw her son
12
Akhilesh dead, having injuries on his neck and head. She
stated that her son Kamlesh and daughter Urmila had gone
to the place of Gulab after seeing the appellant assaulting
their uncle and brother. Both of them came and informed
her that Thakur Das and Akhilesh were assaulted by the
appellant. She suspected that the appellant had gone
towards the field and therefore, she followed the appellant
towards the field. She saw the appellant assaulting her
husband Devki Prasad with the axe. When she tried to stop
the accused from assaulting the deceased, the accused
abused her and told her to go away and threatened her that
she would also meet the same fate. She stated that when
she was returning home, she saw PW7Rakesh. Thereafter,
PW4Rammilan, PW5Khillu Patel and PW6KamleshII
also came. She has further stated in her evidence that
deceased Thakur Das was residing with the appellant for 10
years. However, the appellant started demanding the land of
Thakur Das and his tractor. As such, the appellant forced
Thakur Das to leave his house. Thereafter, Thakur Das had
started residing with the family of deceased Devki Prasad.
13
She has stated that the appellant thought that Thakur Das’s
property would come to the family of Devki Prasad and so,
the appellant had assaulted and killed her brotherinlaw,
her husband and son. PW1 has been crossexamined at
length. However, in spite of lengthy crossexamination, her
evidence insofar as the incident is concerned, has gone
unchallenged.
23. PW2Urmila was about 1112 years old at the time of
incident. After putting preliminary questions to her, the trial
judge found that she was capable of understanding the
questions and answering the same and as such, her
statement was recorded without administering oath to her.
24. She stated that on the day of the incident, after her
mother went to answer the call of nature, she was doing the
household work. She heard the sound of ‘ dham dham ’ and
thought that it might be a dog’s sound. She went towards the
place from where the sound was coming and saw that the
appellant was assaulting the deceased with an axe. Her
brother Akhilesh was sleeping in the courtyard. She tried to
wake him up but he did not get up. The appellant came to
14
the courtyard along with the axe and started assaulting
Akhilesh. She got frightened and therefore went to PW6
KamleshII’s house. Her brother Kamlesh (PW3) had also
woken up. He also tried to wake Akhilesh up but he did not
get up. The appellant tried to catch hold of Kamlesh (PW3)
too, however, Kamlesh (PW3) ran away with Urmila to
KamleshII’s house. She further stated that thereafter, her
mother came. She informed about the incident to her
mother. Thereafter, her mother went to the field. She stated
that her mother saw the appellant assaulting the deceased.
Thereafter, her mother came home and started shouting and
raising hue and cry. As such, PW6KamleshII and PW4
Rammilan came there. The said child witness has also been
thoroughly crossexamined. However, her evidence insofar
as the main incident is concerned, has gone unchallenged.
Similar is the evidence of PW3Kamlesh who was aged 1213
years at the time of the incident.
It will be thus clear from the evidence of PW1Kiran
25.
Patel, that she has personally witnessed the appellant
assaulting deceased Devki Prasad. It will be further clear
15
from the evidence of PW2Urmila and PW3Kamlesh that
they have personally witnessed the appellant assaulting
deceased Thakur Das and deceased Akhilesh. The evidence
of these three witnesses would also reveal that immediately
after PW1 came from field, she was informed by PW2 and
PW3 about the assault by the appellant on Thakur Das and
Akhilesh. The testimony of these three witnesses is duly
corroborated by the other witnesses. PW4Rammilan is the
son of Shyambihari. Shyambihari is another brother of
deceased Thakur Das, deceased Devki Prasad and appellant
Bhagchandra. He has stated in his deposition that on the
date of incident when he was going out at around 5.30 am,
his aunt Kiran Patel was shouting maar dala , maar dala .
When he went near his aunt Kiran Patel, he saw that inside
the house, Thakur Das and Akhilesh were lying dead. When
he went to the field, he saw Devki Prasad lying dead in front
of the tractor. He stated that Kiran informed him about the
incident. This witness had accompanied PW1 to the Police
Station for lodging the report. This witness has also
undergone lengthy crossexamination. Nothing damaging
16
has come on record in the crossexamination. This witness
would be in a sense a neutral witness inasmuch as his
relation with both, the appellant and the deceased, is of the
same degree. PW1 had immediately disclosed about the
incident to him and he had accompanied her to lodge the
FIR.
26. Similar is the testimony of PW5Khillu Patel.
PW6KamleshII is also related to the witnesses,
27.
deceased and the appellant. He stated that on the date of
the incident at around 04.00 am, he had gone to answer the
call of nature. While returning, he received a message on his
mobile and in that light, he saw the appellant running
towards him. On him questioning the appellant as to what
he was doing there, the appellant said, “I thought that you
are Thakur Das”. At that time, the appellant was having an
axe with him. Thereafter, PW6 came home and was resting.
At around 05.0005.30 am, the children of Devki Prasad
namely Urmila (PW2) and Akhilesh (PW3) came to him.
Both were frightened and told him that Bhagchandra uncle
had hacked Thakur Das and Akhilesh with the axe. He
17
further stated that he too was afraid as he was alone and
could not do anything. He stated that in the meantime,
Kiran Bhabhi had come and informed about the incident.
It could thus be seen that all these witnesses establish
28.
the presence of each other. PW1Kiran Patel stated about
the presence of PW4Rammilan, PW5Khillu Patel and PW
6KamleshII and about them immediately coming to the spot
and her informing them about the incident. PWs 4, 5 and 6
corroborated the testimony of PW1 in that aspect. PW2
Urmila and PW3Kamlesh stated about witnessing the
incident of appellant assaulting deceased Thakur Das and
Akhilesh, and running towards the house of KamleshII and
informing him about the same. PW6 too corroborated this
version of PWs 1, 2 and 3.
Insofar as the evidence of PW7Rakesh is concerned,
29.
we find that the conduct of the said witness appears to be
somewhat unnatural. He stated that after witnessing the
incident, he had gone to another village on motorcycle to see
his friend. From there, he had gone to the Hospital at
Maharajpur. After that, he came home at around 10.00
18
10.30 am. Though, the police were present in the village, he
did not inform them about the incident. On his own, he
stated that he had informed KamleshII about the incident.
We therefore find that it will not be appropriate to rely on his
testimony. However, even if the testimony of PW7 is
eschewed, we find that the ocular testimonies of PWs 1 to 6
establish the case of the prosecution beyond reasonable
doubt that it is the appellant who had assaulted the
deceased persons.
30. No doubt that there are minor discrepancies in the
evidence of these PWs. It will be relevant to refer to the
following observations of this Court in the case of State of
9
:
Uttar Pradesh v. Krishna Master and Others
“15. Before appreciating evidence of the
witnesses examined in the case, it would be
instructive to refer to the criteria for appreciation
of oral evidence. While appreciating the
evidence of a witness, the approach must be
whether the evidence of the witness read as a
whole appears to have a ring of truth. Once
that impression is found, it is undoubtedly
necessary for the court to scrutinise the
evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities
9 (2010) 12 SCC 324
19
pointed out in the evidence as a whole and
evaluate them to find out whether it is
against the general tenor of the evidence and
whether the earlier evaluation of the
evidence is shaken as to render it unworthy
of belief. Minor discrepancies on trivial
matters not touching the core of the case,
hypertechnical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical error committed by the
investigating officer not going to the root of
the matter would not ordinarily permit
rejection of the evidence as a whole.
16. If the court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of the evidence given by
the witness, the appellate court which had not
this benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless the reasons are weighty and formidable, it
would not be proper for the appellate court to
reject the evidence on the ground of variations or
infirmities in the matter of trivial details.
Minor
omissions in the police statements are never
considered to be fatal. The statements given
by the witnesses before the police are meant
to be brief statements and could not take
place of evidence in the court. Small/Trivial
omissions would not justify a finding by court
that the witnesses concerned are liars. The
prosecution evidence may suffer from
inconsistencies here and discrepancies there,
but that is a shortcoming from which no
criminal case is free. The main thing to be
seen is whether those inconsistencies go to
the root of the matter or pertain to
20
insignificant aspects thereof. In the former
case, the defence may be justified in seeking
advantage of incongruities obtaining in the
evidence. In the latter, however, no such benefit
may be available to it.
17. In the deposition of witnesses, there are
always normal discrepancies, howsoever
honest and truthful they may be. These
discrepancies are due to normal errors of
observation, normal errors of memory due to
lapse of time, due to mental disposition,
shock and horror at the time of occurrence
and threat to the life. It is not unoften that
improvements in earlier version are made at the
trial in order to give a boost to the prosecution
case, albeit foolishly. Therefore, it is the duty
of the court to separate falsehood from the
truth. In sifting the evidence, the court has to
attempt to separate the chaff from the grains
in every case and this attempt cannot be
abandoned on the ground that the case is baffling
unless the evidence is really so confusing or
conflicting that the process cannot reasonably be
carried out. In the light of these principles, this
Court will have to determine whether the
evidence of eyewitnesses examined in this case
proves the prosecution case.”
[ ]
emphasis supplied
It could thus be seen that what is required to be
31.
considered is whether the evidence of the witness read as a
whole appears to have a ring of truth. It has been held that
minor discrepancies on trivial matters not touching the core
21
of the case, hypertechnical approach by taking sentences
torn out of context here or there from the evidence, would not
ordinarily permit rejection of the evidence as a whole. It has
been held that the prosecution evidence may suffer from
inconsistencies here and discrepancies there, but that is a
shortcoming from which no criminal case is free. What is
important is to see as to whether those inconsistencies go to
the root of the matter or pertain to insignificant aspects
thereof. It has been held that there are always normal
discrepancies due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental
disposition, shock and horror at the time of occurrence. It is
the duty of the court to separate falsehood from the truth in
every case.
32. Applying these principles, we are of the view that the
minor discrepancies in the evidence of the prosecution
witnesses are not of such a nature which would persuade
this Court to disbelieve their testimonies. It is further to be
noted that the witnesses are rustic villagers and some
inconsistencies in their depositions are bound to be there.
22
33. In this respect, it will be apposite to refer to the
following observations of this Court in the case of
Krishna
Master (supra):
The record of the case shows that this witness
“23.
Jhabbulal was crossexamined at great length. He
was subjected to gruelling crossexamination which
runs into 31 pages. The first and firm impression
which one gathers on reading the testimony of this
witness is that he is a rustic witness. A rustic
witness, who is subjected to fatiguing, taxing and
tiring crossexamination for days together, is bound
to get confused and make some inconsistent
statements. Some discrepancies are bound to take
place if a witness is crossexamined at length for
days together. Therefore, the discrepancies noticed
in the evidence of a rustic witness who is subjected
to gruelling crossexamination should not be blown
out of proportion. To do so is to ignore hard realities
of village life and give undeserved benefit to the
accused who have perpetrated heinous crime.
The basic principle of appreciation of evidence
24.
of a rustic witness who is not educated and comes
from a poor strata of society is that the evidence of
such a witness should be appreciated as a whole.
The rustic witness as compared to an educated
witness is not expected to remember every small
detail of the incident and the manner in which the
incident had happened more particularly when his
evidence is recorded after a lapse of time. Further, a
witness is bound to face shock of the untimely
death of his near relative(s). Therefore, the court
must keep in mind all these relevant factors while
appreciating evidence of a rustic witness.”
23
It can thus be seen that this Court has held that in case
34.
of rustic witnesses, some inconsistencies and discrepancies
are bound to be found. It has been held that the
inconsistencies in the evidence of the witnesses should not
be blown out of proportion. To do so is to ignore hard
realities of village life and give undeserved benefit to the
accused. It has been held that the evidence of such
witnesses has to be appreciated as a whole. A rustic witness
is not expected to remember every small detail of the incident
and the manner in which the incident had happened.
Further, a witness is bound to face shock of the untimely
death of his near relatives. Upon perusal of the evidence of
the witnesses as a whole, we are of the considered view that
their evidence is cogent, reliable and trustworthy.
35. Having held that the ocular testimony of the witnesses
establishes the guilt of the accused beyond reasonable doubt,
we come to the other contentions of the appellant. Insofar as
the contention of the appellant that the medical evidence
does not support the prosecution case, it will be appropriate
24
to rely on the judgment of this Court in the case of Krishnan
(supra):
and Another
“18. The evidence of Dr Muthuswami (PW 7) and
Dr Abbas Ali (PW 8) do not in any way run
contrary to the ocular evidence. In any event, the
ocular evidence being cogent, credible and
trustworthy, minor variance, if any, with the
medical evidence is not of any consequence.
Coming to the plea that the medical evidence
20.
is at variance with ocular evidence, it has to be
noted that it would be erroneous to accord undue
primacy to the hypothetical answers of medical
witnesses to exclude the eyewitnesses' account
which had to be tested independently and not
treated as the “variable” keeping the medical
evidence as the “constant”.
It is trite that where the eyewitnesses'
21.
account is found credible and trustworthy,
medical opinion pointing to alternative
possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and
ears of justice. Hence the importance and
primacy of the quality of the trial process.
Eyewitnesses' account would require a careful
independent assessment and evaluation for its
credibility which should not be adversely
prejudged making any other evidence, including
medical evidence, as the sole touchstone for the
test of such credibility. The evidence must be
tested for its inherent consistency and the
inherent probability of the story; consistency with
the account of other witnesses held to be
creditworthy; consistency with the undisputed
facts, the “credit” of the witnesses; their
performance in the witness box; their power of
observation etc. Then the probative value of such
25
evidence becomes eligible to be put into the
scales for a cumulative evaluation.”
36. As already discussed hereinabove, the ocular evidence
of the eye witnesses is cogent, reliable and trustworthy.
Apart from that, the oral version in the testimonies of PWs 1,
2 and 3 is duly corroborated by the injuries as shown in the
PostMortem Report of the deceased persons. Therefore, the
contention in this regard is liable to be rejected.
The attack of the appellant is on the other
37.
circumstances like the recovery of the axe under Section 27
of the Evidence Act not being relevant, since the same not
being established to be used in the offence nor in the
Serology Report, etc.
Since the present case is a case of direct evidence, even
38.
if the prosecution has failed to prove the other incriminating
circumstances beyond reasonable doubt, in our view, it will
not have an effect on the prosecution case. In the present
case, another factor that is to be noted is that immediately
after the incident, FIR is lodged by PW1 who was
26
accompanied by PW4. The FIR fully corroborates the ocular
evidence of prosecution witnesses.
39. In that view of the matter, we are of the considered view
that even upon reappreciation of the evidence, it cannot be
said that the trial court has committed an error in convicting
the appellant and the High Court in confirming the same.
40. That leaves us with the question of sentence. We will
have to consider as to whether the capital punishment in the
present case is warranted or not.
41. Recently, this Court in the case of Mohd. Mannan
10
alias Abdul Mannan v. State of Bihar , after considering
earlier judgments of this Court on the present issue in the
11
cases of Bachan Singh v. State of Punjab and Machhi
12
, observed thus:
Singh and Others v. State of Punjab
“72. The proposition of law which emerges from
the judgments referred to above is itself death
sentence cannot be imposed except in the rarest
of rare cases, for which special reasons have to be
recorded, as mandated in Section 354(3) of the
Criminal Procedure Code. In deciding whether a
case falls within the category of the rarest of rare,
10 (2019) 16 SCC 584
11 (1980) 2 SCC 684
12 (1983) 3 SCC 470
27
the brutality, and/or the gruesome and/or
heinous nature of the crime is not the sole
criterion. It is not just the crime which the Court
is to take into consideration, but also the
criminal, the state of his mind, his socio
economic background, etc. Awarding death
sentence is an exception, and life imprisonment
is the rule.”
42. This Bench, recently, in the case of
Mofil Khan and
13
Another v. The State of Jharkhand has observed thus:
“ One of the mitigating circumstances is the
8.
probability of the accused being reformed and
rehabilitated. The State is under a duty to
procure evidence to establish that there is no
possibility of reformation and rehabilitation of the
accused. Death sentence ought not to be
imposed, save in the rarest of the rare cases
when the alternative option of a lesser
punishment is unquestionably foreclosed (See:
Bachan Singh v. State of Punjab (1980) 2 SCC
684). To satisfy that the sentencing aim of
reformation is unachievable, rendering life
imprisonment completely futile, the Court will
have to highlight clear evidence as to why the
convict is not fit for any kind of reformatory and
rehabilitation scheme. This analysis can only be
done with rigour when the Court focuses on the
circumstances relating to the criminal, along with
other circumstances (See: Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
(2009) 6 SCC 498). In Rajendra Pralhadrao
Wasnik v. State of Maharashtra (2019) 12 SCC
460, this Court dealt with the review of a
13 RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated
26.11.2021
28
judgment of this Court confirming death sentence
and observed as under:
“45. The law laid down by various
decisions of this Court clearly and
unequivocally mandates that the
probability (not possibility or
improbability or impossibility) that a
convict can be reformed and
rehabilitated in society must be
seriously and earnestly considered by
the courts before awarding the death
sentence. This is one of the mandates
of the “special reasons” requirement of
Section 354(3) CrPC and ought not to
be taken lightly since it involves
snuffing out the life of a person. To
effectuate this mandate, it is the
obligation on the prosecution to prove
to the court, through evidence, that the
probability is that the convict cannot
be reformed or rehabilitated. This can
be achieved by bringing on record,
inter alia, material about his conduct
in jail, his conduct outside jail if he has
been on bail for some time, medical
evidence about his mental makeup,
contact with his family and so on.
Similarly, the convict can produce
evidence on these issues as well.””
43. In the present case, it is to be noted that the trial court
had convicted the appellant and imposed death penalty on
the very same day. From the judgment of the trial court, it
does not appear that the appellant was given a meaningful
time and a real opportunity of hearing on the question of
29
sentence. From the judgment of the trial court as well as the
High Court, it does not appear that the courts below have
drawn a balance sheet of mitigating and aggravating
circumstances. The trial court as well as the High Court has
only taken into consideration the crime but have not taken
into consideration the criminal, his state of mind, his socio
economic background etc. At this juncture, it will be
relevant to refer to the following observations of this Court in
the case of
Rajendra Pralhadrao Wasnik v. State of
14
Maharashtra :
| “47. Consideration of the reformation,<br>rehabilitation and reintegration of the convict into<br>society cannot be overemphasised. Until Bachan<br>Singh [Bachan Singh v. State of Punjab, (1980) 2<br>SCC 684 : 1980 SCC (Cri) 580] , the emphasis<br>given by the courts was primarily on the nature of<br>the crime, its brutality and severity. Bachan<br>Singh [Bachan Singh v. State of Punjab, (1980) 2<br>SCC 684 : 1980 SCC (Cri) 580] placed the<br>sentencing process into perspective and<br>introduced the necessity of considering the<br>reformation or rehabilitation of the convict.<br>Despite the view expressed by the Constitution<br>Bench, there have been several instances, some<br>of which have been pointed out<br>in Bariyar [Santosh Kumar Satishbhushan<br>Bariyar v. State of Maharashtra, (2009) 6 SCC<br>498 : (2009) 2 SCC (Cri) 1150] and |
|---|
14 (2019) 12 SCC 460
30
in Sangeet v. State of Haryana [ Sangeet v. State
of Haryana , (2013) 2 SCC 452 : (2013) 2 SCC
(Cri) 611] where there is a tendency to give
primacy to the crime and consider the criminal in
a somewhat secondary manner. As observed
in Sangeet [ Sangeet v. State of Haryana , (2013) 2
SCC 452 : (2013) 2 SCC (Cri) 611] “In the
sentencing process, both the crime and the
criminal are equally important.” Therefore, we
should not forget that the criminal, however
ruthless he might be, is nevertheless a human
being and is entitled to a life of dignity
notwithstanding his crime. Therefore, it is for the
prosecution and the courts to determine whether
such a person, notwithstanding his crime, can be
reformed and rehabilitated. To obtain and analyse
this information is certainly not an easy task but
must nevertheless be undertaken. The process of
rehabilitation is also not a simple one since it
involves social reintegration of the convict into
society. Of course, notwithstanding any
information made available and its analysis by
experts coupled with the evidence on record,
there could be instances where the social
reintegration of the convict may not be possible. If
that should happen, the option of a long duration
of imprisonment is permissible.”
44. In view of the settled legal position, it is our bounden
duty to take into consideration the probability of the accused
being reformed and rehabilitated. It is also our duty to take
into consideration not only the crime but also the criminal,
his state of mind and his socioeconomic conditions. The
deceased as well as the appellant are rustic villagers. In a
31
property dispute, the appellant has got done away with two
of his siblings and a nephew. The State has not placed on
record any evidence to show that there is no possibility with
respect to reformation or rehabilitation of the convict. The
appellant has placed on record the affidavits of Prahalad
Patel, son of appellant and Rajendra Patel, nephew of
appellant and also the report of the Jail Superintendent,
Central Jail, Jabalpur. The appellant comes from a rural
and economically poor background. There are no criminal
antecedents. The appellant cannot be said to be a hardened
criminal. This is the first offence committed by the
appellant, no doubt, a heinous one. The certificate issued by
the Jail Superintendent shows that the conduct of the
appellant during incarceration has been satisfactory. It
cannot therefore be said that there is no possibility of the
appellant being reformed and rehabilitated foreclosing the
alternative option of a lesser sentence and making imposition
of death sentence imperative.
45. We are therefore inclined to convert the sentence
imposed on the appellant from death to life. However, taking
32
into consideration the gruesome murder of two of his siblings
and one nephew, we are of the view that the appellant
deserves rigorous imprisonment of 30 years.
Accordingly, the appeals are partly allowed. The
46.
conviction of the appellant for the offences punishable under
Sections 302, 201 and 506B of the IPC is affirmed.
However, the death sentence awarded to the appellant is
converted to life imprisonment for a period of 30 years.
Before we part with the judgment, we must appreciate
47.
the valuable assistance rendered by Shri N. Hariharan,
learned Senior Counsel appearing on behalf of the appellant
and Smt. Swarupama Chaturvedi, learned Assistant
Advocate General appearing on behalf of the respondent
State.
……....….......................J.
[L. NAGESWARA RAO]
..…....….......................J.
[B.R. GAVAI]
33
….…….........................J.
[B.V. NAGARATHNA]
NEW DELHI;
DECEMBER 09, 2021.
34